Tuesday, July 28, 2009

Dismissal as a Sanction

In Sonson v. Hearn (4D08-2799), the Fourth District reversed a trial court's order dismissing a case as a sanction for failure to attend a court ordered deposition. While the court reversed the dismissal, it reaffirmed the trial court's right to impose dismissal as a sanction and stated in the final paragraph: "Our purpose in rendering this opinion is not to further burden an already overburdened trial bench. On the contrary, our decision is meant to affirm the authority of trial judges to deliver the paramount sanction of dismissal when warranted."

The problem with the dismissal in this case was the record did not make clear whether the failure to comply with a court order was the lawyers fault or the clients.

"This case arose from a dispute regarding the ownership of two parcels of land located in St. Lucie County...On numerous occasions over the course of many months, Hearn’s attorney attempted in vain to schedule depositions of Jennifer Sonson, individually and Stephen Sonson as representative of both plaintiff corporations. This recalcitrance culminated in an April 17, 2008 court order directing both individuals to appear for a deposition on April 24, 2008. When neither appeared, Hearn – through her attorney – moved to dismiss the cause of action with prejudice under Florida Rule of Civil Procedure 1.380."


Despite the trial court’s repeated insistence of some type of evidence to support either side’s position at the hearing on the motion to dismiss, both lawyers offered nothing but a couple of certificates of nonappearance, copies of lawyer letters and other unsworn “statements of fact” to advance their respective arguments...

On appeal, the Sonsons argue that the trial court abused its discretion in dismissing their action without finding that their failure to comply with the lower court’s order prejudiced Hearn.

We do not agree with the Sonsons’ argument that a trial court is always required to find prejudice before dismissing an action for all types of discovery misconduct. Although this court has stated “[t]he emphasis should be on the prejudice suffered,” Fisher v. Prof’l Adver. Dirs. Co., 955 So. 2d 78, 80 (Fla. 4th DCA 2007), recognition and enforcement of the court’s authority to enter orders pertaining to discovery remains vital and equally important.

Nonetheless, the trial court’s dismissal appears premature. A dismissal under rule 1.380 is “the most severe of of all sanctions which should be employed only in extreme circumstances.” Mercer v. Raine, 443 So. 2d 944, 946 (Fla. 1983). Upon Hearn’s evidence that the Sonsons failed to appear at the court-ordered depositions, the trial court should have shifted the evidentiary burden to the Sonsons to address the alleged dereliction.

If a deliberate failure to comply with the trial court’s order is attributable to the Sonsons, dismissal might be a proper sanction...However, where the attorney, and not the client, is responsible for the non-compliance, a different set of factors must be applied: 1) whether the attorney’s disobedience was willful, deliberate, or contumacious, rather than an act of neglect or inexperience; 2) whether the attorney has been previously sanctioned; 3) whether the client was personally involved in the act of disobedience; 4) whether the delay prejudiced the opposing party through undue expense, loss of evidence, or in some other fashion; 5) whether the attorney offered reasonable justification for noncompliance; and 6) whether the delay created significant problems of judicial administration. Kozel v. Ostendorf, 629 So. 2d 817, 818 (Fla. 1993). “[I]f a sanction less severe than dismissal with prejudice appears to be a viable alternative, the trial court should employ such an alternative.” Id.


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